It is a slight exaggeration to say that Barack Obama is the first president in American history to have run in part on a political platform of targeted killings—but not much of one. During the campaign, he openly sought to one-up the Republican nominee, Sen. John McCain, in his enthusiasm for the use of targeted strikes in Pakistan against al Qaeda figures. “You know,” he said in his speech at the Democratic National Convention, “John McCain likes to say that he’ll follow [Osama] Bin Laden to the Gates of Hell, but he won’t even go to the cave where he lives.”[i] That he would, as president, follow bin Laden to his cave, with or without the cooperation of the Pakistani government, he made perfectly clear. “If we have actionable intelligence about high-value terrorist targets and President [Pervez] Musharraf won’t act, we will,” he said in another speech.[ii] Indeed, while he criticized President Bush for being too aggressive in many aspects of counterterrorism, with respect to targeted killings, his criticism was the polar opposite: “The Bush administration has not acted aggressively enough to go after al Qaeda’s leadership,” he said. “I would be clear that if Pakistan cannot or will not take out al Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for al Qaeda terrorists who killed thousands of Americans and threaten our homeland today.”[iii]

Obama did not take long, on assuming office, to begin keeping his promise. On January 23, 2009 a mere three days into his presidency, strikes by Predator drones in the tribal areas of Pakistan destroyed two compounds and killed numerous people, reportedly including a high-value target.[iv] Strikes continued, even expanded, over the successive months, and administration officials made clear that they had no plans to curtail them—even as they reined in coercive interrogations and announced the closure of Guantánamo Bay.[v]

Obama was right as a candidate and is correct as president to insist on the propriety of targeted killings—that is, the targeting of a specific individual to be killed, increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles from a stand-off position. The strategic logic that presses toward targeted stand-off killing as a necessary, available and technologically advancing part of counterterrorism is overpowering. So too is the moral and humanitarian logic behind its use. Just as crucial programs of Predator-centered targeted killing are underway now in Afghanistan and, with increasing international controversy, Pakistan, over the long term these programs of stand-off targeted killing will be an essential element in United States counterterrorism into the future—and with targets having little or nothing to do with today’s iteration of the war on terror.[vi] Future administrations, even if they naturally prefer to couch the matter in softer terms, will likely follow the same path. Even if the whole notion seems to some disturbingly close to arbitrary killing, not open combat, it is often the most expedient—and, despite civilian casualties that do occur, most discriminatingly humanitarian—manner to neutralize a terrorist without unduly jeopardizing either civilians or American forces.

But there’s a paradox in Obama’s embrace of targeted killing: Even as the strategic and humanitarian logic for it increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking. They are at risk of shrinking in ways that might surprise members of Congress and the Obama Administration. And they are at risk of shrinking through seemingly innocuous, unrelated legal policy actions that the Obama Administration and Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

American domestic law—the law codifying the existence of the CIA and defining its functions—has long accepted implicitly at least some uses of force, including targeted killing, as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict in the sense meant by the Geneva Conventions and other international treaties on the conduct of armed conflict. Categories of the use of force short of armed conflict or war in a juridical sense—by intelligence services such as the CIA, for example—or by military agents in furtherance of national self defense and vital security interests, yet outside of the legal condition of armed conflict, date back in codified law to the founding of the CIA and, in state practice by the United States and other sovereigns, far further still. Yet as a matter of legal justification, successive administrations have already begun to cede this ground. Even the Bush Administration, with its unrivaled enthusiasm for executive power, always sought to cast its killing targets as the killing of combatants in what it legally characterized as armed conflicts, governed by the laws of war on the conduct of hostilities, known as “international humanitarian law” (IHL). This concession, however, if followed by the Obama Administration and beyond, will likely reduce the practical utility of a policy and security tool of both long-standing provenance and proven current value. It will likely reduce the flexibility of the United States to respond to emerging threats before they ripen into yet another war with non-state terrorists, and it will reduce the ability of the United Sates to address terrorist threats in the most discriminating fashion advancing technology permits.

At this moment in which many policymakers, members of Congress and serious observers see primarily a need to roll back policies and assertions of authority made by the Bush Administration, any call for the Obama Administration and Congress to insist upon powers of unilateral targeted killing and to claim a zone of authority outside of armed conflict governed by IHL that even the Bush Administration did not claim must seem at once atavistic, eccentric, myopic and perverse. Many will not much care that such legal authority already exists in international and U.S. domestic law. Yet the purpose of this chapter is to suggest that, on the contrary, the uses to which the Obama Administration seeks to put targeted killing are proper, but they will require that it carefully preserve and defend legal authorities it should not be taking for granted and that its predecessors, including the Bush Administration, have not adequately preserved for their present day uses.

People who threaten serious harm to the United States will not always be al Qaeda, after all. Nor will they forever be those persons who, in the words of the Authorization for the Use of Military Force (AUMF), “planned, authorized, committed or aided” the attacks of September 11.[vii] As I will explain, it would have been better had the Bush and Clinton Administrations, for their parts, formulated their legal justifications for the targeted uses of force around the legal powers traditionally asserted by the United States: the right of self-defense, including the right to use force even in circumstances not rising to the level of an “armed conflict” in order to have firmly fixed in place the clear legal ability of the United States to respond as it traditionally has. Although the United States still has a long way to go to dismember al Qaeda, its affiliates and subsidiaries, although Osama bin Laden and key al Qaeda terrorist leaders remain at large, and although the President of the United States still exercises sweeping powers both inherent and granted by Congress to use all national power against the perpetrators of September 11, time moves on. New threats will emerge, some of them from states and others from non-state actors, including terrorist organizations. Some of those new threats will be new forms of jihadist terrorism; others will champion new and different causes. Even now, Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than tightly vertical organizations linked by command and control.[viii] It will take successive feats of intellectual jujitsu to cast all of the targets such developments will reasonably put in the cross hairs as, legally speaking, combatants.

Yet the problem is still deeper and more immediate than that, for the accepted space for targeted killings is eroding even within what a reasonable American might understand as the four corners of our conflict with al Qaeda. In many situations in which any American president, Obama certainly included, would want to use a targeted killing, it is unclear to some important actors—at the United Nations, among our allies, among international law scholars, and among NGO activists—as a matter of international law that a state of armed conflict actually exists or that a targeted killing can qualify as an act of self-defense. The legal situation, therefore, threatens to become one in which, on the one hand, targeted killing outside of a juridical armed conflict is legally impermissible and, on the other hand, as a practical matter, no targeted killing even within the context of a “war” with al Qaeda is legally permissible, either.

Congress’s role in this area is admittedly a peculiar one. It is mostly—though not entirely—politically defensive in nature. After all, the domestic legal authorities to conduct targeted killings and other “intelligence” uses of force have existed in statutory form at least since the legislation that established the Central Intelligence Agency in 1947 and in other forms long pre-dating that.[ix] The problem is that although domestic legal authority exists for the use of force against terrorists abroad, currents are stirring in international law and elsewhere that move to undermine that authority. Powerful trend and opinion-setting—so-called “soft law”—currents are developing in ways that, over time, promise to make the exercise of this activity ever more difficult and to create a presumption, difficult to overcome, that targeted killing is in fact both illegitimate and, indeed, per se illegal except in the narrowest of war-like conditions. The role of Congress is therefore to reassert, reaffirm, and reinvigorate the category as a matter of domestic law and policy, and as the considered, official view of the United States as a matter of international law.

The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force.

Resurrecting the formal UN Charter rules on the use of force, however, would have the perverse effect of making international peace and security more difficult to achieve. Not only has that system failed in practice, but it is not designed to deal with the changing nature of warfare. The Charter?s use-of-force rules were addressed to the prevention or reduction of armed conflict between states. They are not adequate to deal with the more contemporary problems of civil war, mass violence against civilians at the hands of non-state terrorist groups, the protection of populations from genocide or other atrocities inflicted by their own governments, or the violence that is bred within failed or failing states.

What is needed is a new international legal regime for regulating the use of force by states against the threats of these varying kinds. The overarching goal of this regime should be the maintenance of international peace and stability through the pursuit of global welfare. Unlike the UN Charter system, which is designed to drive the use of force by states close to zero, a reconstructed international legal system should seek to produce the optimal level of force, thus allowing armed interventions for the purpose of preventing catastrophic harms.

The emergence of new great powers (China, the EU, and India, for example) and the re-emergence of older ones (such as Russia) have apparently begun to shift the post?Cold War world from unipolarity to multipolarity. Global peace and security in the future may no longer be underwritten by an (assumedly) ?hegemonic? US. Instead, the world may experience a return to the kind of great power politics that was prevalent in Europe before World War I (and arguably, throughout recorded human history). While we would not attempt to forecast how an emerging multipolar world would work, an explicit great power system could well ameliorate the collective action problems that the current UN Charter system exacerbates, and thus could advance global welfare.

The United States Constitution grants to the Congress the power, among others, to issue ?Letters of Marque and Reprisal.? Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government?s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

Character issues are of increasing importance in the role of the Australian Security and Intelligence Organisation (ASIO) in assessing the national security risk posed by aliens. For example, ASIO assessments underpinned the long-term detention of two Iraqi refugees on Nauru, and the deportation of US activist Mr Scott Parkin. This article considers how ASIO national security assessments are made, whether they constitute a form of character testing, and what accountability mechanisms are in place to challenge such assessments.

On 13 February 2008, the European Commission presented a new ‘Border Package’, setting out its vision of how to foster the further management of the EU’s external border. In assessing the desirability and feasibility of the new system, CEPS JHA specialists find the Commission’s proposal ill-considered and likely to have substantial counterproductive effects on the ground. They expect it to create the same sort of public relations problems as do similar US measures among a travelling public that finds itself increasingly the object of state suspicion, with no concrete reason or grounds.

With the 2006 publication of the Army-Marine Corps Counterinsurgency Field Manual, adhering to law has officially become a strategic imperative. Yet, court decisions and briefs still operate under the assumption that the application of law to the battlefield shackles the military. Even decisions like Boumediene, in which the Court granted Guantanamo Bay detainees habeas rights, does so apologetically. But this article demonstrates that law is not only a strategic necessity in today?s conflicts, but that the Constitution itself is a strategically pragmatic document that was designed to allow restrictions on individual rights when military necessity requires it – but only so long as that necessity exists. The Court must continue to exercise its constitutional duty to review executive claims of necessity, and as the strategic situation changes, so must the level of rights afforded to detainees. Accordingly, this article posits a battlefield jurisprudence. At the far end, only constitutional enemies, defined as those individuals connected to a state engaged in hostilities, can receive prisoner of war treatment, including indefinite detention. For all other individuals, the strategic or pragmatic Constitution affords lawmakers the opportunity to tailor rules to optimize the level of legal rights and thereby maximize the chances for a positive outcome for the U.S.

As the United States takes on the violent non-state actors, whose arsenals now exceed those of many states, policymakers and leaders should not give up on the ?old-fashioned? rules designed for relations among states. When properly clarified, the rules reveal powerful avenues for defending national security against non-state threats like Al Qaeda. While we cannot wage war against non-state actors and remain consistent with international and constitutional law, we can use force against those who take a direct part in hostilities, commit violent attacks outside the jurisdiction of any state, or engage in action sufficiently hostile to warrant immediate measures in individual or unit self-defense. Ultimately, force will not solve many of the great twenty-first century security challenges on its own – for national security must be a national exertion just as international security must be a global one – but, there is great cause to hope that in the next decades, a renewed embrace of the international and constitutional law of war will fully reveal the empowering abilities of both and the law?s ability to enhance the security of all.

Part I of this paper briefly introduces the two competing schools of jurisprudential thought of formalism and functionalism. Part II analyzes Youngstown through both the formalist and functionalist lenses, and highlights how these lenses separately influenced the majority opinion of Justice Black and the more widely cited concurring opinion of Justice Jackson.

Part III carries the analysis from both Parts I and II, and discusses the influence of formalism and functionalism specifically on the areas of national security law where separation of powers issues are implicated. By analyzing the strengths and weaknesses of both formalism and functionalism as presented in separation of powers cases, Part III elucidates why it was inevitable that Justice Jackson?s functionalist and pragmatic concurring opinion in Youngstown prevailed as the most popular judicial prism through which courts dissect and analyze national security-related separation of powers issues.

Parts IV and V of this paper undertake an empirical analysis of some of the major cases decided since the 1952 Youngstown decision that have either explicitly or implicitly applied Justice Jackson?s three-tiered Youngstown framework. Since 1952, two types of Youngstown cases have emerged: those that fit neatly within the three-tiered framework – like the Dames & Moore scenario in Part IV – and those that must employ an implicit four-tiered framework in order to assess the limits of executive authority – such as the Guantanamo Detention cases in Part V. By thoroughly examining not only the published opinions, but also the appellate briefs of the petitioners and respondents, as well as any related amicus briefs or applicable legislative history, Parts IV and V expose the seemingly arbitrary nature of a functionalist method of judicial review, and show how this method of analysis – although it is flexible and allows judges to reach a necessary result – inevitably forces all courts to examine unreliable and malleable atextual sources. However, these Parts also show that the benefit to a functionalist framework in national-security cases, versus a more formalist framework is that the risk of judicial overreaching is avoided, and the precise scope of the President?s Article II powers continue to remain undefined, and thus, unimpeded by judicial precedent and available for future use should the national security of the United States ever require them.